The following papers numbered 1 to 6 were read on these motions:

PaperNumber

Order to Show Cause, Affidavit, Affirmation and Exhibits1

Notice of Motion, Affirmation and Exhibits2

Affirmations and Exhibits in Opposition3

Affirmations and Exhibits in Opposition4

Affidavit, Affirmation and Exhibits in Reply5

Reply Affirmation and Exhibits6

Plaintiff brings her motion seeking (1) a money judgment against defendant in the sum of $23,150 with statutory interest from November 1, 2010; (2) a money judgment in the sum of $12,884.12 with statutory interest from October 29, 2010; (3) a money judgment in the sum of $7,500 for overdue counsel fees with statutory interest from October 30, 2010; (4) a money judgment of $2,293 for health insurance costs; (5) to hold defendant in contempt pursuant to Articles 756, 761 and 770 of the Judiciary Law and DRL § 245 for his failure to comply with Court Orders dated February 25, 2009 (the "February Order") and September 14, 2010 (the "September Order"); (6) to incarcerate defendant; and (7) $7,500 in counsel fees.

In response, defendant brings his motion seeking to modify the February Order, which (1) requires defendant to pay $3,625 in maintenance and (2) $3,834 in child support.

Background

As the Court stated in the September Order, the February Order required defendant to pay to plaintiff each month $3,834 for child support for the parties' four children and $3,625 for [*2]maintenance, for a total of $7,459 per month. The September Order further stated that "Using this money, plaintiff was to pay — going forward — the mortgage, taxes and insurance on the marital home. These expenses, according to plaintiff's updated Net Worth Statement, total approximately $3,720 per month, leaving plaintiff with $3,740 per month to pay for utilities, land line, cable, internet, unreimbursed medical expenses, food, clothing, incidentals, cell phones, gas, and all other expenses for plaintiff and the parties' four daughters." The September Decision went on to state that "it is clear that (1) defendant must pay the full $7,459 per month every month, on the first of the month; and (2) defendant must pay all outstanding arrears. The arrears shall be paid in full on or before October 4, 2010."

The September Decision also held that "defendant must pay the property taxes for the family home that had accrued prior to the date of the Decision. Defendant was responsible for the taxes up to that point, and now must reimburse plaintiff for the $12,884.12 that was laid out for him. This payment must be made on or before October 29, 2010." It further ordered defendant to pay to plaintiff, on or before October 30, 2010, an additional $7,500 in counsel fees.

The Motions

Plaintiff now states that defendant has not made these payments. She sets forth the arrears as follows: (1) $23,100 for outstanding maintenance; (2) $12,884.12 for the tax arrears; (3) $7,500 for the counsel fee award; and (4) $2,293.48 for health insurance (because defendant did not make the payments of $573.37 for four months, plaintiff was required to do so). Plaintiff further claims that defendant did not give plaintiff the proof of health or life insurance as the September Order also directed.

In his motion, defendant claims that the February Order was based on erroneous calculations and was unsustainable from the outset. He claims that his income declined from a high of $120,097 in 2007 (total joint income) to a low in 2009 of $41,533 (his allegedly sole income) after deducting the business loss of $47,058.^[FN1] Curiously, though, defendant's 2009 W-2 shows income of $61,434 — an amount that defendant does not explain.

Defendant now, on his motion, seeks to pay $40,000 per year in combined maintenance and child support, or $3,333.33 per month. Clearly, if defendant were only earning $41,533 per year, as he claims, this proposed amount would be unusual (at best). Having reviewed all of the papers submitted, the Court finds that $41,533 is not, in fact, defendant's true income. It is clear to the Court that defendant's income is actually significantly higher than he makes it out to be. Defendant's Statement of Net [*3]Worth ("NWS") shows that he lists no charges for a car, gas or other car-related expenses; a telephone, cellular or land line; medical or other health insurance. Assuming that defendant does use a car, a phone and does have some medical benefits, those "perks" must be added into his income. See Spilman-Conklin v. Conklin, 11 AD3d 798, 783 N.Y.S.2d 114 (3d Dept. 2004). Moreover, while defendant's NWS shows that his two homes in Connecticut are in foreclosure, and the marital home (where the four children of the marriage reside) is also in foreclosure, it shows that the home that defendant owns in Rockland County (which is not where he lives) is not in foreclosure.

While defendant admits that he owes "most of the money" that plaintiff seeks in judgments, he continues to "categorically deny owing her the tax arrears of $12,884.12." Considering that the September Order expressly found that defendant was liable for this amount, and unequivocally directed him to pay that amount on or before October 29, 2010, his categorical denial is irrelevant to this Court.^[FN2] The simple fact is that this Court already found that defendant owed this money, and ordered him to pay it by a date certain.

In the September Order, the Court stated that

While defendant claims poverty, he submits only an outdated Net Worth Statement, an income tax return from 2008, and letters showing that his applications for credit were rejected — in 2008 and early 2009. In other words, defendant provides the Court with no proof of his current financial status. The Court finds this omission to be troubling. The Court is also troubled by the fact that defendant apparently purchased a house for himself during these proceedings. He does not deny this allegation. His top priority is not to pay the mortgage, taxes and other expenses on his home, but to provide for his wife and children from this marriage. Moreover, if it is true, as plaintiff alleges, that defendant recently rented another home, and is taking on additional obligations in the form of a new wife, rather than pay his Court-ordered obligations, there will be serious repercussions.

(Emphasis added). Defendant does not address most of these statements in his papers. Moreover, while defendant makes a lot of the fact that plaintiff does not again rent out the apartment in the marital home (which plaintiff claims is illegal, and thus cannot be rented), he does not explain why his presumably vacant Rockland home is not rented out, when he lives with his new religious wife in New Jersey.

[*4]Contempt

As counsel for defendant suggests, there is an alternative remedy to holding defendant in contempt — a remedy which plaintiff herself seeks. Jones v. Jones, 65 AD3d 1016, 885 N.Y.S.2d 323 (2d Dept. 2009) ("Here, the plaintiff failed to show that other enforcement methods would not be effective to secure payment of the arrears. Since there was no showing made by the plaintiff that she had attempted to sequester the defendant's property or garnish his wages, the Supreme Court erred in punishing the defendant for contempt."). Plaintiff both seeks money judgments and claims that they would be ineffectual. This is inadequate to prove to the Court that contempt is the only available remedy. Wolfe v. Wolfe, 71 AD3d 878, 895 N.Y.S.2d 855 (2d Dept. 2010) ("the defendant failed to show that he had exhausted less drastic enforcement remedies, or that resort to such remedies would be ineffectual.").

While defendant's counsel suggests that there are assets of the marriage, such that the judgments should be held in abeyance until the assets are distributed, that is not what a review of defendant's NWS shows. Aside from marital home (which is in foreclosure), the cash surrender value of the life insurance policies and a few very small accounts, there are really no assets to speak of. The Court will thus not make plaintiff wait until the end of the case for her relief. Accordingly, the Court now grants plaintiff the four judgments she seeks: $23,150 for the arrears; $12,884.12 for the taxes; $7,500 for overdue counsel fees; and $2,293 for health insurance costs, all with statutory interest from the date of this Decision and Order. Should the parties decide to adjust their behavior, and try to maximize their marital resources for the sake of their four daughters, they may, of course, agree to settle these judgments in another way.

The foregoing constitutes the decision and order of the Court.

Dated:New City, New York

February __, 2011

____________________________

HON. LINDA S. JAMIESON

Justice of the Supreme Court

To: